Kadushi Edward vs Republic (Criminal Appeal No. 72 of 2021) [2023] TZCA 17722 (4 October 2023)

IN THE COURT OF APPEAL OF TANZANIA ATTABORA fCORAM: LILA, 3.A., KITUSL 3.A. And MGEYEKWA. 3.A.> CRIMINAL APPEAL NO. 72 OF 2021 KADUSHI EDWARD ...................... ....... . ............ .. APPELLANT VERSUS THE REPUBLIC . ......... ........ . ................................................ RESPONDENT [Appeal from the Decision of the High Court of Tanzania at Tabora] fKihwelo. J.Y dated the 16th day of December, 2020 in Criminal Appeal No. 107 of 2019 JUDGMENT OF THE COURT 26 ^ September, 8 t 4* October, 2023 LILA. 3A: This is a second appeal whereby the appellant, in Criminal Case No. 107 of 2018 of the Resident Magistrates' Court of Tabora, was convicted of the offence of statutory rape contrary to sections 130(l)(2)(e) and 131(1) of the Penal Code. The offence was allegedly committed on 5/10/2018 to a girl aged 16 years whom we shall refer to as the victim or PW4 so as to disguise her identity and the appellant was sentenced to Page 1 of 20

serve thirty years imprisonment. He challenged hjs conviction and sentence before the High Court in Criminal Case No, 107 of 2019 but was unsuccessful. Still protesting his innocence, he has lodged this appeal. These factual settings provide the background to this appeal. The incident, the subject of the charge, occurred on 5/10/2018 when Andrea Masali (PW4) had travelled to Igunga to trace his four wives who had left the matrimonial home and went back to their respective parents. He left his six children he was staying with, including the victim, at Kitindi Village within Uyui District, in the care of the appellant, the son of his deceased young brother with whom he was staying at his home since the demise of his father in 2018. His mission remained unaccomplished as he was forced to return home following a call from his young bother one Juma just in the next morning informing him that the appellant had raped the victim and was under his arrest. He returned home to attend to the matter. Explaining the ordeal, the victim was forthcoming that on the fateful date the appellant, his brother, returned home very late in the night and knocked the door demanding for food. She opened the door and served him with food. The appellant who had left his bicycle outside the house, asked the victim to take it inside to which she agreed and as she was Page 2 of 20

doing so, the appellant followed her from behind and dosed the door. The victim asked the appellant as to what was the purpose of doing so and the appellant remained silent only later to ask her why she was disclosing to her father what he used to tell her, to which question the victim kept quiet something that prompted the appellant to inquire further why she kept quiet. The appellant seized the opportunity to undress himself despite a warning from the victim that she would report the matter to her paternal uncle one Baba juma who turns out to beJuma Masali (PW2). In response, the appellant said "let me commit suicide and police will come and collect all of you". So as to avoid the appellant, PW1 unsuccessfully attempted to force herself out by opening the door and the appellant held her by her hand, covered her mouth by hand and dragged her on the bed, undressed her and inserted his male organ into her female organ while threatening to stab her with a knife he had if she was to scream for help. Afraid of losing her life, she succumbed by letting the appellant satisfy his sexual desire. Upon being discharged, she went to her room and took her younger sister and went to report to PW2 to whom she narrated the whole incident and the latter asked his wife Hadija Salum (PW3) to inspect her private parts and she confirmed to him that it was true that she was raped. PW2 with one Gerald Masasi left to where the

appellant was and arrested him that very night. The following morning police arrived and arrested the appellant and took him to Igalula Police Station, The Victim also went to police where she was issued with a medical Form No. 3 (PF3 or exhibit P2) and went to hospital where she was medically examined by Doctor John Shauri (PW6) who certified in exhibit P2 that the victim was raped upon noting bruises and sperms in her female organ. Human Immunodeficient Virus (HIV) test was also conducted by PW6 to both the victim and the appellant which revealed that the victim was safe but not the appellant who was found positive. During cross-examination by the appellant, at page 28 of the record, PW6 said the appellant told him that he raped the victim. On his part, PW2 testified that the victim reported to him at night that she was raped by the appellant and he asked his wife Hadija Salum Juma (PW3) to check her private parts who confirmed so to him. That, he then sought assistance from his neighbour one Gerald Masasi to escort him to PW4's residence where they knocked the door and called the appellant cheating him that the cows had broken the kraal and were destroying neighbour's crops. The appellant opened the door, they arrested him and retained him until he was collected by the police the Page 4 of 20

next morning. PW3 confirmed inspecting the victim on the material night and realising that she was really raped. The appellant was taken to Jackltne Lukuba (PW5), a Resident Magistrate who, as justice of the peace, recorded the appellant's extra-judicial statement (exhibit PI) confessing commission of the offence of rape after he had returned from taking local brew, There was, during his defence, admission from the appellant who was the sole defence witness, that he was staying with PW4 as his paternal uncle but he said he had gone there to collect his father's cows following his death and that he was told by PW4 to wait for PW2, his uncle, so that he could be given them. But that never materialised and he stayed there for three days not to see PW4 and had to stay there for the fourth day, the fateful day. That, in that night PW2 knocked his door pretending that the cows had broken the kraal and as he opened the door, he arrested and beat him forcing him to admit raping the victim and for fear of being injured, he admitted. That, he was taken to police on the next morning. He attributed the accusation with his demand for his late father's cows for which the victim's family had planned to make sure that he was buried there or be imprisoned for life. In cross-examination by the Page 5 of 20

learned State Attorney at page 34 of the record, he admitted telling PW6 that he raped the victim. He also, on the same page, admitted that he admitted raping the victim before the magistrate (justice of the peace) before whom he was free. He, however, discredited the evidence by the victim and the Doctor (PW6) questioning why the former did not report the matter to other family members nearby their house instead of travelling a long distance up to PW2's residence and that the latter was his brother-in law as he married a member of his uncle's family hence had interests in the case and had a meeting with them causing his delay to testify. In its well-reasoned judgment, the trial court found the charge proved to the required standard and dismissed the appellant's defence holding that it raised matters which the appellant did not cross-examine the prosecution witnesses so as to allow them opportunity to respond to them hence were an afterthought. He held the prosecution evidence as true relying in the principle set in the persuasive case of Browne vs. Dunn [1893] 6R. H.L. that failure to cross-examine a witness on material facts means acceptance as correct unless the witness is incredible. He aiso relied on the case of Selemani Makumba vs. Republic, [2006] TLR Page 6 of 20

379 that the best evidence in sexual offences comes from the victim. Ultimately, the appellant was convicted as charged and sentenced to serve the statutorily prescribed thirty (30) years imprisonment. The decision aggrieved him. Before the High court, the appellant raised seven (7) complaints in his bid to challenge the trial court's findings but all were unsuccessful save for expungement of the appellant's extra-judicial statement (exhibit PI) and the PF3 (exhibit P2) on account of not having been read out in court after they were cleared for admission and admitted as exhibits. Haying assumed the duty of a first appellate court to re-evaluate the evidence in terms of the Court's decision in Hassan Mfaume vs. R [1981] T.L.R. 167, the learned judge subjected the whole evidence under scrutiny and was satisfied that the testimonies by PW1, PW2, PW3, PW5,PW6 and the appellant's own defence that he admitted before PW5 and PW6 raping the victim were properly analysed and evaluated by the trial court and was of a concurrent finding that such evidence proved the charge and the appellant was properly convicted. The appellant's defence was found to be weak and unable to shake the prosecution evidence against him for similar reasons given by the trial Page 7 of 20

court that the appellant did not cross-examine prosecution witnesses in various incriminating statements which amounted to his admission citing the cases of Paul Yusuf Nchia vs. National Executive Secretary, Chama Cha Mapinduzf and Another, Civii Appeal No. 85 of 2005 and Damian Ruhehe vs. Republic, Criminal Appeal No. 501 of 2007 (both unreported) and also that the best evidence in sexual offences comes from the victim citing the case of Selemani Makumba vs. Republic (supra). Before this Court, the High Court is being faulted through a four- point memorandum of appeal stating that: - "1. That, there was no re-assignment order from Judge In - charge to allow Hon. P. F Kiwheio, J. to compose thejudgment 2. That\ the two courts bellow did not address their minds to the issue o f the case being concocted upon the appellant by the family o f the victim because o f the claim from the victim's father of cattle left by the appellant's father after his demise. 3. That, the two courts bellow erred in law to convict and sentence the appellant without satisfying themselves on the details o f the identification of Page 8 of 20

the appellant by the victim since the offence was committed under cover o f darkness. 4. That, on the totality of the evidence on record and the circumstances o f the caser the case for the prosecution was not proved against the appellant beyond reasonable doubt." The appellant, who had no legal representation before us, simply adopted his grounds of appeal and asked for the respondent Republic to first respond to them. Mr. Winluck Mangowi, learned State Attorney, seized that opportunity to stoutly resist the appeal. Mr. Mangowi opted to start submitting in respect of ground two (2) reserving his submission in respect of ground one (1) to a later stage. The complaint is about the case being a concoction by the victim's family aimed at denying him the right to be given his late father's cattle, While referring to the appellant's petition of appeal before the High Court reflected at pages 68 to 70 of the record of appeal, he sought for the Court's indulgence to disregard it for being a new and factual ground not having been canvassed before the High Court. He argued that the Court lacks mandate to entertain new factual complaints putting reliance on section 6 (7)(a) of the Appellate Jurisdiction Act (the A3A). The appellant Page 9 of 20

rejoined that this ground has substance calling for the Court's need to consider it. We have dispassionately examined the record of appeal and we hasten to agree with the learned State Attorney that the complaint in ground one is purely factual and was not raised before the first appellate court denying this Court the requisite jurisdiction to entertain it in terms of section 4(1) of the AJA. We respectfully agree that this is a new ground which was not placed before the first appellate court for it to determine. To indulge on this ground is against the clear dictates of section 4 (1) of the AJA and rule 72 (2) of the Rules which expressly require the Court to entertain grounds of appeal challenging the decisions arising from the High Court or Resident Magistrate exercising extended jurisdiction only [See Robert Andondile Komba vs. D.P.P., Criminal Appeal No. 465 of 2017 citing Dickson Anyosisye vs. R., Criminal Appel No. 155 of 2017 and Jackson Zebedayo Wambura and Another v. R, Criminal Appeal No. 419 of 2018 (all unreported)]. The point here is that, save for a ground raising a point of law, all grounds of appeal to this Court must arise from the grounds first considered and determined by the first appellate court as the Court expounded in Godfrey Wilson v. R, Criminal Appeal No, Page 10 of 20

168 of 2018 (unreported), that, only matters of law may be entertained in this Court without first being discussed in the High Court. We would add that the Court's jurisdiction is a creature of statute and besides section 4(1) of AJA, its foundation is in Article 117 (3) of the Constitution of the United Republic of Tanzania 1977 which states that - "(3) The functions o f the Court o f Appeal shall be to hear and determine every appeal brought before it arising from the judgment or other decision o f the High Court or o f a magistrate with extendedjurisdiction It suffices to say that this complaint is new and we disregard it. Ground three (3) of appeal takes issue with the appellant's identification the basis being that the offence was committed in the darkness. Arguing on this ground, M r. Mangowi, although he was not straight enough, seemed to agree that the offence was committed at night and no any source of light was stated making it difficult for a proper and unmistaken identity. Indeed, the record, in particular through the evidence by the victim and PW2, tells that the offence was committed at night and the incident involved only two persons - the victim and the appellant. It is therefore the victim who was better placed to know who Page 11 of 20

was her ravisher and as she claimed that it was the appellant, her brother, it was visual identification by recognition by a single witness at night time when the circumstances are always unfavourable for one to make a proper and unmistaken identification. We take note that in a case depending entirely on visual identification evidence, it is settled law that it is of the weakest character and the courts should not act on such evidence unless satisfied that all the possibilities of a mistaken identification are eliminated and the evidence is absolutely watertight. Another warning to courts by the Court is that even recognizing witnesses often make mistakes or deliberately lie. In such circumstances, courts are required to be cautious when dealing with the evidence of identification. In, for instance, the case of Abdalla Wendo and Another v. R (1953) 20 EACA 166 at 168, it was stated that: - "Subject to certain weft-known exceptions, it is trite iaw that a fact may be proved by the testimony ofa single witness but this rule does not lessen the need for testing with greatest care the evidence o f a single witness respecting identification ; especially when it is known that the conditions favouring a correct identification were la c k in g ... (Emphasis added) Page 12 of 20

To avoid the risk of implicating an innocent person, the Court in a plethora of decisions including the often-cited case of Waziri Amani vs. R (1980) TLR 250, set out factors to be considered by a court in assuring itself that there is no mistake committed in identification including existence of light, its source and intensity. The record is silent in the existence of any of them. It is in view of this fact that M r. Mangowi sought to establish circumstantially that the victim was ravished by no other person than the appellant. He argued that the appellant was not a stranger to the victim and they lived together in the house which facts were not disputed by the appellant, that the two had a long conversation right from the time the appellant nocked the door, demanded and was given food by the victim, the appellant asked the victim to take his bicycle inside and the blame the appellant directed to the victim of reporting to PW4 of whatever he had talked to her which circumstances negate the argument that the victim did not identify him or did not know who ravished her. The case of Charles Manati vs. Republic, Criminal Appeal No. 286 of 2017 (unreported) was cited to us to support the argument. He added that, to lend credence to the victim's assertions, the victim reported the matter to PW2 that very night leading to the appellant's arrest and the testimonies by PW2 and PW3 lend corroboration to that evidence. Page 13 of 20

Mr. Mangowi further submitted that the victim's credibility was not doubted by the trial magistrate who observed her when testifying such that he recorded so in the proceedings at page 16 of the record that the witness was consistent, straight and responded well to the questions put to her during cross-examination by the appellant. In support, he cited to us the case of Maligile Maingu vs. Republic, Criminal Appeal No. 432 of 2021 (unreported). He added that even the appellant confessed before the justice of the peace (PW5) and the Doctor (PW6). These circumstances, considered, M r. Mangowi argued, show that the victim saw and identified the appellant to be her brother that is why she opened the door and served her with food before he later turned against her and had carnal knowledge of her. On his side, the appellant contended that the courts below should not have relied on the victim's evidence on account of being unreliable. His reason was that if she was truly raped how could she go all along to PW2 who stayed far instead of reporting the matter to other family members nearby their house. The issue of the appellant's identification raised in ground three (3) of appeal need not hold us long. The evidence from the victim as already Page 14 of 20

demonstrated whose credibility is beyond reproach leaves us with no flicker of doubts in our minds that it was the appellant who ravished her for two reasons; one, that she was not doubtful and her credibility based on demeanour being an exclusive domain of the trial court, the learned trial magistrate recorded his observation in terms of section 212 of the CPA. We see no reason to interfere with his observation and we hold that identification evidence by the victim upon which the conviction was predicated was impeccable. Two, from the facts that the two are not strangers to each other and the long time the two had in conversation and the manner the victim served him with food and took the bicycle inside before rape was committed, a reasonable inference may be drawn that they were close enough something that enabled her to identify the person she opened the door for him to enter, served him with food and later ravished her was none but the appellant. Failure to mention existence, the source and extent of light seems to be a mere omission on the part of the victim. As for the appellant's contention, the record is vivid that the appellant was the elder man in that house and there was no evidence that there were other relatives' houses near the house hence the appellant's argument that the victim should not be believed for failure to report to other relatives finds no support. Even the appellant did not Page 15 of 20

mention any one. After all the victim did not withhold the information long as she immediately after the incident went to report to PW2 because her father (PW4) was on safari which is a prudent action. [See Mwita Kigombe Mwita and Another vs. Republicr Criminal Appeal No. 63 of 2001 (unreported)]. Therefore, this complaint has no merit and is dismissed. In ground four (4) of appeal the appellant's complaint is that the charge was not proved. The ordeal was explained by the victim whose credibility impressed the trial magistrate who had opportunity to see her testifying. Credibility based on demeanour being his exclusive domain, he found her to be undoubtful, the age of the victim having been proved by her father (PW4) at page 16 that she was born in 2002 hence 16 years when the offence was committed against her and the victim's explanation that the appellant inserted his penis into her vagina thereby causing bruises and sperms as certified by the Doctor and the appellant's own admission to PW5 and PW6 that he raped the victim were beaconed by M r. Mangowi as sufficiently proving the charge rendering the complaint in ground four (4) a futile attempt by the appellant. He is, in our firm view, correct. To prove the commission of the offence of statutory rape, the Page 16 of 20

essential ingredients to be proved by the prosecution was that the victim was penetrated and was of the age below eighteen years which, as demonstrated above, were sufficiently proved. This ground of appeal also fails. Lastly, we turn to deliberate on the complaint in ground one (1) of appeal which we had reserved to this stage. It relates to absence of an order assigning the case to the successor judge to compose judgment. M r. Mangowi conceded to this complaint but had it that it was not prejudicial to the appellant. He assigned two reasons to back up his stance. One, that the infraction was cured by the successor judge in the judgment when he prefaced it by stating that he had to do so following the demise of his brother judge Bongole J. Two, that the appeal was heard to its completion by the late Bongole X hence there was nothing for him to hear before composing the judgment as he was only to consider the grounds of appeal in relation to the proceedings and argument by the parties which were already in the record. He was firm that such omission by the Judge In-charge to make that order did not occasion any injustice to the appellant. The appellant, on his side, pressed that the assignment order was necessary before the successor judge could assume that task. Page 17 of 20

We, in the first place, do not think that the appellant wants to see the assignment order by the Judge In-charge for one reason that that is one of the administrative functions of the judge in-charge. Legally and the various Court's decisions are to the effect that reasons for change of magistrate or judge amidst the conduct of proceedings should be known to the parties to the case. So, the complaint should be directed towards that end. We, for the purpose of resolving the complaint, take it that the appellant meant that the judgment of the successor Judge was a nullity for being composed without jurisdiction for want of reason for change of presiding judge. To our dismay, however, neither the learned State Attorney nor the appellant was able cite to us the provisions of law violated. We, entirely agree with the view taken by the learned State attorney. The complaint requires us to answer the issue whether such omission was fatal and vitiated the successor Judge's judgment. It is a legal requirement under the provisions of section 299 (1) of the CPA that, where a case has already been partly heard by one Judge, the successor Judge has to explain to the accused his rights stipulated under the provisions, a thing which was not complied with in the instant matter. But, Page 18 of 20

we must hurriedly state that like the provisions of section 214(1) of the CPA which applies to trials before subordinate courts, section 299(1) of the CPA applies in trials before the High Court not in appeals. The rationale is obvious that, in trials, courts are availed with the opportunity to see witnesses testify hence observe their respective demeanour which is relevant in the determination of their credibility which may influence the judge when composing the judgment. Such is not the case in appeals where a court is called upon to determine the appeal based on the evidence on record and arguments by the parties in which case credence of the witnesses is determined by examining the consistence and coherence of the witnesses' evidence on record only. This, no doubt, accounts for absence of a similar provision to section 214(1) and 299(1) of the CPA in appeals. It would, in the circumstances, be improper to seek inspiration and fully adopt the requirements of sections 214(1) of the CPA for trials in the subordinate courts or section 299(1) of the CPA for trials in the High Court which apply only in trials, in the determination of appeals. To seal it all, those provisions apply in trials not in appeals. In a matter where everything was in record like the present one where the parties' arguments in appeal were already in the record, it was not necessary to do so and no harm or injustice was caused to either side. As Page 19 of 20

a matter of prudence, a successor judge presiding in an appeal and at any stage, may call the parties and cause them to know the reason(s) for succession but failure to do so has no any legal consequences. The question of prejudice does not therefore arise. That said, this complaint is baseless and is dismissed. All said, the appeal is without merit and we dismiss it in its entirety. DATED at TABORA this 3r d day of October, 2023. S. A. LILA JUSTICE OF APPEAL I. P . KITUSI JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL Judgment delivered this 4th day of October, 2023 in the presence of the Appellant in person and Mr. Steven Mnzava, State Attorney for the RespondenUgep.ublic, is hereby certified as a true copy of the original. G. H. HERBERT DEPUTY REGISTRAR COURT OF APPEAL Page 20 of 20